C. J. Lazer v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **WP(C).No.3165 OF 2021(U)** ## **PETITIONER:** **C.J.LAZER AGED 58 YEARS S/O.JOSE, CHIRAYATH HOUSE, SASTHRI NAGAR, NADATHARA P.O., THRISSUR DISTRICT, PIN - 680 751.** **BY ADVS.** **SRI.DINESH MATHEW J.MURICKEN SRI.N.R.SANGEETHARAJ SRI.VINOD S. PILLAI SMT.SREELAKSHMI R. SHRI.MOHAMMED THAYIB N.M. SRI.K.VISWANATHAN** ## **RESPONDENTS:** **1 STATE OF KERALA REP. BY THE SECRETARY INDUSTRIES AND COMMERCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PALAYAM P.O., PIN - 695001. 2 THE DIRECTOR, DIRECTORATE OF INDUSTRIES AND COMMERCE DEPARTMENT VIKAS BHAVAN, 3RD FLOOR, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 033. 3 THE GENERAL MANAGER DISTRICT INDUSTRIES CENTRE, KENATHUPARAMBU, KUNATHURMEDU P.O., PALAKKAD DISTRICT, PIN - 678 001.** -2- WP(C).No.3165 OF 2021(U) |**4**|**THE SUB DISTRICT INDUSTRIAL OFFICER AND**| |---|---| ||**ESTATE OFFICER**| ||**TALUK INDUSTRIES OFFICE, BEHIND CIVIL**| ||**STATION, PALAKKAD DISTRICT, PIN - 678 001.**| |**5**|**NAVANI MEDITEX PRIVATE LIMITED**| ||**AADITHYAN ARCADE, NEAR SUB REGISTRAR OFFICE,**| ||**PARLI P.O., PALAKKAD DISTRICT, PIN - 678 612,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR, SHABEER**| ||**N.A.**| ||**R BY SMT K.AMMINIKUTTY - SR GOVT. PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- WP(C).No.3165 OF 2021(U) ## **JUDGMENT** The petitioner, who was allotted a plot having an extent of 66.03 cents in Sy.No.309/2, 3 of Puthussery Central Village, in the New Industries Development Area at Kanjikode, vide Ext.P1 order dated 17.10.2006 of the 3[rd] respondent General Manager, District Industries Centre, Palakkad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 resumption order dated 25.01.2021 issued by the 3[rd] respondent. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Director of Industries and Commerce to consider Ext.P9 appeal filed against Ext.P8 order and to pass appropriate orders. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 4. Considering the nature of reliefs proposed to be granted, service of notice on the 5[th] respondent is dispensed with. 3. Rule 24 of the Government Land (Allotment and Assignment for Industrial Purposes) Rules, 2020, deals with resumption of industrial units, which reads thus; -4- WP(C).No.3165 OF 2021(U) ## **24. Resumption of Industrial Units:** In the following cases, the land allotted shall be resumed by the Competent Authority. - i) A maximum period of two years is fixed as the period within which the allottee should utilise the land for the purpose for which it is allotted. So the maximum time limit to start a unit is only two years. If the allottee does not start the commercial production on the allotted land within the extended period, the land will automatically be resumed. A penalty of Rs3000/- per day will be charged for each day of delay after the expiry of two years from the date of agreement till the date of resumption if the land could not be resumed for any reason whatsoever. And if the allottee does not pay the penalty, the Revenue Recovery formalities as per Revenue Recovery Act of 1968 shall be initiated. Beyond the annoinated date of resumption specified in the rule, the penalty will take effect irrespective of any proceedings whatsoever pending in any forum. The General Manager is to take appropriate action to calculate and collect the penalty including by revenue recovery of the same by the established procedure. - ii) If a unit is found not functioning, a period of one year shall be given to the allottee to restore the unit to normalcy and restart production process. By this time, notices shall be served to the allottee and opportunity to be heard shall be given. Land shall be resumed without further notice, if the allottee fails to restart the business within one year and no -5- WP(C).No.3165 OF 2021(U) ## extension of time will be granted further. If a transfer or takeover is proposed during the period of restoration, then the transfer may be allowed on condition that the transferee should start the business within one year from that date of transfer. If the transferee cannot start the production process within the one year period, then the land will automatically stand resumed. A penalty of Rs 3000/per day will be charged from the transferee for each day of delay after one year till the date of resumption if the land could not be resumed for any reason whatsoever. And if the transferee does not pay the penalty, the Revenue Recovery formalities as per Revenue Recovery Act of 1968 shall be initiated. The maximum period for the restarting of the unit will be 24 months (12 months + 12 months (if there is transfer/takeover). Beyond the annoinated date of resumption specified in the rule, the penalty will take effect irrespective of any proceedings, what so ever, pending in any forum. The General Manager is to take appropriate action to calculate and collect the penalty including by revenue recovery of the same by the established procedure. - iii) If the allottee violates any of the terms and conditions of the Land allotment Rules or Agreement executed at the time of allotment of land. - iv) If the industrial land allotted is found as not fully utilized, then the unutilised portion shall be resumed after affording an opportunity of being heard and -6- WP(C).No.3165 OF 2021(U) such cases shall be disposed off within a period of one month. v) If the original allottee sublets/underlets the land. The allottee, if aggrieved by the decision of the General Manager, may file appeal before the Director of Industries & Commerce within 30 days on receipt of a copy of resumption order and the Director shall dispose the appeal within 30 days. 4. Invoking the provisions under Rule 24, the 3[rd] respondent issued Ext.P8 resumption order dated 25.01.2020, resuming the plot allotted to the petitioner as per Ext.P1 order dated 17.10.2006 and reallotted 50 cents of land to the 5[th] respondent. Challenging Ext.P8, the petitioner has already filed Ext.P9 appeal before the 2[nd] respondent Director of Industries and Commerce, under Rule 24 of the said Rules. 5. The learned Senior Government Pleader would submit that the 2[nd] respondent will consider and pass orders on Ext.P9 appeal filed by the petitioner, within a time limit to be specified in the aforesaid Rules. 6. The learned counsel for the petitioner would submit that the petitioner shall file an interlocutory application in Ext.P9 appeal seeking stay of operation of Ext.P8 order. 7. Having considered the submissions made by the -7- WP(C).No.3165 OF 2021(U) learned counsel on both sides, this writ petition is disposed of with the following directions; - i) The petitioner shall file an interlocutory application for stay in Ext.P9 appeal within a period of one week from this date. On receipt of such an application, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, within a period of two weeks thereafter, with notice to the petitioner and also to the 5[th] respondent. - ii) Thereafter, the 2[nd] respondent shall consider Ext.P9 appeal filed by the petitioner and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also the 5[th] respondent and after affording them an opportunity of being heard, as expeditiously as possible, at any rate, within a period of 30 days, as provided in Rule 24 of the aforesaid Rule. 8. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that no mandamus can be -8- WP(C).No.3165 OF 2021(U) issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 9. Therefore, in terms of the direction contained in this judgment, the 2[nd] respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/10/02 -9- WP(C).No.3165 OF 2021(U) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 17/10/2006.** - **EXHIBIT P2** **TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 17/10/2006.** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE WITH SKETCH ISSUED BY THE 3RD RESPONDENT DATED 10/07/2007.** - **EXHIBIT P4 TRUE COPY OF THE LETTER ISSUED BY THE ADDITIONAL TAHSILDAR TO THE PETITIONER DATED 21/01/2016.** - **EXHIBIT P5 TRUE COPY OF THE LETTER AND CHECK LIST SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 17/06/2020.** - **EXHIBIT P6 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 23/12/2020.** - **EXHIBIT P7 TRUE COPY OF THE REPLY TO EXHIBIT P6 LETTER GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 16/01/2021.** - **EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 25/01/2021.** **EXHIBIT P9** **TRUE COPY OF THE APPEAL FILED BY THE PETITIONER AGAINST EXHIBIT P8 ORDER BEFORE THE 2ND RESPONDENT DATED 01/02/2021.**